Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
Perceptibly the remedy to be afforded in response to the present appeal is the substitution of a judgment which in essential respects will be expressive of the orally announced conclusions of the trial judge. The factual pedestal upon which the controversial issues of law and equity are balanced is beyond meritorious attack.
However, a brief precursory disclosure of the facts is appropriate. In 1948 the defendant Walter Rietzke, a carpenter,
then living with his wife and six or seven children in a converted chicken coop and without adequate financial resources of his own with which to build a home for himself and family, consulted his trusted friend, Mr. Edward Van Buskirk, a real estate agent with offices at Matawan, whom he informed that he had selected an acre of ground owned by one Mary Mundy which could be acquired and upon which he desired to erect a modest home, but he required a loan of a few hundred dollars. He implored Mr. Van Buskirk to purchase the parcel of land for him and his wife and to supply the purchase price as a loan.
Mr. Van Buskirk was not at the moment in a position to make the loan but obtained one for the couple from a client, Irene Horan, with the proceeds of which the parcel of land was purchased for them.
The transaction was consummated in this fashion. The deed from the grantor Mundy purported to convey the title in fee to Irene Horan, and an associated contract was executed by the terms of which Irene Horan upon the payment of her loan by stated instalment credits with interest, agreed to convey the property to the defendant and his wife, who assumed immediate possession of the premises.
The defendant Walter began the erection of the dwelling but was currently retarded by a lack of funds for the purchase of necessary building materials. Mrs. Van Buskirk came to his rescue, acquired the interest of Irene Horan by a conveyance from the latter to herself, proceeded to supply additional moneys in the purchase of the needed building materials, and assumed the contract to sell upon reimbursement by the Rietzkes.
On July 9, 1951 the monetary assistance doubtless sympathetically bestowed upon the defendant Walter Rietzke and his family, had aggregated about $2,800, when Mrs. Barbara Ludi, another investing client of the Van Buskirk agency, acquired the legal title to the property by a deed of conveyance from Mrs. Van Buskirk and her husband, and Mrs. Ludi likewise assumed the contractual obligation to convey the premises to the defendants Rietzke upon the payment by
larger periodical instalments of the amount due to her, now amounting to about $3,000. By such means and by the exertions of the defendant Walter, the erection of the dwelling house was eventually completed.
Mention may now be made of the ensuing occurrences that have incited the prosecution of the present action in the Chancery Division of this court.
On January 26, 1953 the plaintiff recovered a judgment against Walter Rietzke in the Monmouth County District Court in the sum of $300, which was on May 25, 1953 duly docketed in the office of the clerk of that county. A writ of execution was issued to satisfy the judgment, pursuant to which the sheriff levied upon and sold to the plaintiff all the right, title, and ...